Transgender rights bill reaches critical stage in Parliament

By Amanda van Frankfoort and David Deen | The passing of Bill C-16 would explicitly outline rights for transgender people on paper, but activists fear they won’t always come to fruition in practice. The bill will be debated on Tues. Oct. 18 in the House of Commons.

On Oct. 18 the Liberal-proposed Bill C-16 on transgender rights will have its second hearing and be debated in the House of Commons.

“This legislation is important because it will ensure that protection against discrimination based on an individual’s gender identity or expression is explicitly included in the Canadian Human Rights Act.”

— Jody Wilson-Raybould, Minister of Justice

Gender identity refers to an individual’s internal experience of gender, which may or may not be the same gender as the the one they were assigned at birth.

Gender expression is how an individual outwardly expresses and presents their gender, including through their name and preferred pronouns.

If the bill is approved, activists say it would be a big step in the right direction towards ensuring transgender people’s rights are protected. However, they say words on paper do not completely guarantee the achievement of equality for transgender people in Canada in reality. They are not under any illusions that the bill will solve all of the issues transgender people face with regard to discrimination and inequality.

Glass slippers aren’t one size fits all

Charlie Lowthian-Rickert is a 10-year-old transgender girl who, at age three, told her mother during bath time that she was not a boy. As a child Lowthian-Rickert wasn’t allowed to play Cinderella in a pre-school production because princess roles are for “real girls.” At age seven Lowthian-Rickert and her mother were not permitted to join a life-skill and development troupe for young girls because the groups are only for “real girls.”

Lowthian-Rickert says at the very least the bill will make it difficult for people to engage in day-to-day discriminatory behaviour.

“The bill might not entirely stop the heartless people that do means things every day but it will restrain them and might make them pause and think twice,” says the 10-year-old. “And, if people do continue to be discriminatory or hateful, the bill means they will be punished.”

Charlie’s mother, Anne Lowthian, says diversity is “not a bad thing” and needs to be embraced, not discriminated against.

“As parents we are terrified for the future of our kids. Absolutely terrified,” says Lowthian. “That is why Bill C-16 and the advocacy work we do is so important, because if we can change one heart then we have moved a mountain.”

Breakdown of Bill C-16

The amendments to the Human Rights Act would appear in sections 2 and 3(1), titled purpose and proscribed discrimination, respectively.

The effect of the proposed amendment to the Criminal Code is less straightforward. In the Criminal Code, the changes would appear in section 318(4). This change would be an extension of previously established laws protecting against hate discrimination and propaganda, but would specifically pertain to protection for transgender people.

“Everyone deserves to live free from discrimination and be protected from hate propaganda and hate crimes.”— Jody Wilson-Raybould, Minister of Justice

The second aspect of the amendment would be relevant in portions of section 718.2. The changes stipulate that if a hate crime against a transgender person meets the criteria of hate crimes already outlined in the code, then increased sentences are permitted for certain circumstances if the offence is motivated by hate, bias, or prejudice against a person’s gender identity or gender expression.

The Minister of Justice says, “Inclusion of these terms will provide a clear legal confirmation of equal human rights and criminal law protections…everyone deserves to live free from discrimination and be protected from hate propaganda and hate crimes.”

Overview of provincial legislation

Nationally, transgender people’s human rights are protected under the Canadian Human Rights Act that provides guidelines ensuring protection for all Canadian citizens. Provincially and territorially however, there is a linguistic difference within the various codes that either explicitly or implicitly protects the rights of transgender people.

Transgender people identify with the terms “gender identity” and “gender expression” which are explicitly stated in the majority of provincial and territorial legislation.

A handful of provincial and territorial human rights codes do not list these identifiers in their codes and instead intend for the protection of transgender people’s rights to be implicit, meaning the code does not identify “gender identity” or “gender expression,” but rather uses all-encompassing language to protect the rights of all people.

Amanda Ryan, the president of Gender Mosaic, explains the issue with the use of implicit versus explicit language, “whether we have gender identity specifically mentioned or not we are still protected, but then you look at the provincial and territorial codes and all of them have race, religion, and disability explicitly included.”

“These identifiers are there because there is specific, pointed discrimination of people based on race, religion, and disability. Trans needs to be specifically stated because there is also specific discrimination against trans people,” says Ryan.

History of the transgender rights bill

Regulating the use of washrooms for transgender people has been a significant topic of debate in recent years and an issue of significant political debate south of the Canadian border.

In early 2015 The White House announced the availability of gender-neutral washrooms for all staff in order to cultivate a less exclusionary workplace environment for transgender people.

Conversely, in Canada last year Conservative Senator Don Plett added an amendment to Bill C-279, a former version of the current Bill C-16, which would prohibit people from using washrooms in a variety of public places if the label on the door did not match their birth gender.

This was the largest issue of contention surrounding the private members bill, Bill C-279.

“I think having someone so young and obviously an innocent-type person, it just shoots the hell out of all those stereotypes such as that trans people are sexual perverts and pedophiles. How could a 10-year-old child be any of those?”

— Amanda Ryan, President of Gender Mosaic

The argument was that the amendment was necessary to protect people, especially children, from being exposed to the harm that would arise if men were given access to women’s washrooms.

Ryan dismisses this argument, “I have never encountered the pedophilia stuff at all, that is just a stereotype that doesn’t exist in reality.”

Reid notably points out regardless of whether or not a person is transgender, “there are no federal or provincial laws restricting access to washrooms right now – it is entirely lawful for a woman to walk into a men’s washroom [and vice versa].”

Ryan comments that it is refreshing to see 10-year-old Lowthian-Rickert involved at such a young age, “She has been very visible to the public and I think having someone so young and obviously an innocent-type person, it just shoots the hell out of all those stereotypes such as that trans people are sexual perverts and pedophiles. How could a 10-year-old child be any of those?”

Effect on public spaces

Bill C-16 does not have any stipulations about implementing gender neutral or all gender washrooms. Furthermore, many public spaces in which washroom discrimination or harassment might occur will not fall under the federal regulation of the bill, including municipally regulated public spaces such as airports, museums, libraries and public transportation.

“It will take initiatives by individual institutions to do this,” says Ryan. “Public opinion could make it happen quicker. We are already seeing gender neutral washrooms in some schools.”

Education still needs improvement

However, Reid says misunderstandings regarding washroom use stems from an absence of education.

“Education, it is still a huge piece of the puzzle because it is one of these things where having it in writing is very helpful, but sometimes people don’t understand the implications,” says Reid.

Reid references a study from Sept. 2016 conducted by the Angus Reid Institute to support this concept of absent education.

The poll found that more than 80 per-cent of Canadians are in favour of adding gender identity and gender expression to the Human Rights Act. However, when asked more specifically about whether or not they support transgender people using washrooms different than that of their birth gender, that percentage dropped to approximately 60 per cent.

Reid says, “The fact that you have a 20 per-cent gap between people saying ‘yes’ to rights, but ‘no’ to the use of washrooms speaks to the huge educational gap because this suggests people don’t really understand what those rights that they agree with would actually entail.”

“I think the bill is going to help everybody,” says Ryan. “It is one little step along the way because having this law in place means we have acknowledgement by law that we are somebody, that the trans community exists.”

Reid agrees that the passing of the bill would be a stepping-stone leading to more information and necessary education for the public.

Next steps

If the House of Commons and the Senate approve the amendments then the bill needs to receive royal assent to become law.

Ryan says the transgender community isn’t anxious, “we are quite confident the bill will pass the House without much difficulty.”

A variety of Conservative MPs have made statements recently regarding their position on the bill.

Mike Patton, campaign spokesperson for Saskatchewan MP Brad Trost, said in a Twitter video that the Conservative MP who is running for party leadership is not going to vote in support of the bill.

The Citizen reports that representatives from both Maxime Bernier’s campaign and Kelly Leitch’s campaign have confirmed that the candidates will vote in favour of the bill.

“I thought, a bill is being put up by some of the leading people in the liberal government so they notice how important this bill is for us. They notice that we need help and something to protect us.”

— Charlie Lowthian-Rickert

“It seems as though since it is a liberal government bill they are on our side and they are the majority of the house,” Ryan explains. “We know the NDP are on our side and we’ve already had Rona Ambrose and Tony Clement say that they will support the bill, too.”

Lowthian-Rickert says the reboot of the bill by the Liberal government meant a lot to her and she hopes to see it pass to further education about transgender people’s rights.

“Overall it felt really good to say the least to be able to be there to announce Bill C-16,” says Lowthian-Rickert. “I thought, a bill is being put up by some of the leading people in the liberal government so they notice how important this bill is for us. They notice that we need help and something to protect us.”